Family LawContact and Residence Applications

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Private Law - Children

Family Law - Contact with Children

Problems regarding contact with a child or decisions as to where the child will live frequently arise as a result of parties breaking up or marriage coming to an end.

No child should be denied the opportunity to enjoy the benefits of a caring and loving relationship with those who have played a part in his or her life, or wish to participate in the life of the child.

The law relating to children and the rights of the parents is very complex. Whether you are seeking to have contact with a child or a residence order, we can assist you in finding your way and help you to understand what can be a very difficult process.

The breakup of a marriage or partnership is a difficult and stressful experience not only for the parents of a child but also for other family members. This is particularly so for grandparents who may fear that they will be prevented from continuing to play a part in their grandchildren's lives, when previously they might have had a very close relationship with them.

The rules regarding legal aid changed in 2012. Individuals who would have qualified may now not be eligible under the new provisions and will now find that they will either have to instruct solicitors privately which might be beyond their financial resources, or represent themselves. This will involve for example, completing and filing the application, responding to requests for information deal with paperwork and expectations of the court.

We will provide you with support to help you self manage your application.

How Affordable Law For You can help

Affordable Law for You can also offer guidance as to procedure and format of contested hearing.

Going to court is a very stressful experience. The courtroom is quite often an alien environment for those who have never been to a court before. This is particularly so when it relates to your continued involvement in your child or grandchild's life.

Emotions can run high to the extent that parties can lose sight of the fact that the central focus of the court is the children and not the wishes/needs of the parents or grandparents.

Your case is unique and your circumstances individual to you and your family. Contact and residence are very personal issues. It is for that reason that we provide individually drafted letters in every instance.

We can help you with:

  • Drafting letters before action
  • Completing your application
  • Responding to an application if you've been served with one
  • Drafting statements in support of your application
  • Drafting proposed directions for your first court hearing
  • Guiding you on the content of your evidence for the trial bundle
  • Understanding technical legal language
  • Understanding the court process and the legal principles that the court will use to make their decision
  • Being better prepared to conduct your case
  • Drafting letters generally

Contact with a child

Where contact cannot be agreed or has broken down, a contact order can be sought from the court. Contact orders can be direct or indirect, depending on what is in the best interests of the child.

Direct contact means, for example, seeing face to face and going for a meal and indirect contact could include e-mails or telephone calls. If direct contact is ordered the court will stipulate the details surrounding such as the time and duration of the contact.

Contact orders made by the court can be enforced by the court

Enforcing a Contact order

Despite a contact order existing, sometimes the order is being ignored or not kept to as it should be. When that happens you might be able to apply to the court to have the order enforced. For example, the court made an order that contact with your child should occur every other Saturday from 12 noon to 5:00 pm. For the last 6 weeks the mother of the child is refusing to allow you to see the child. Despite attempts to sort out why contact is not occurring she refuses to give you any reasonable excuse. You may then decide to go to the court to enforce the order.

Residence Orders

Residence orders decide who the child will live with. For example, you and your partner have separated or divorced and you now want the children to live with you for part of the week. You are not able to come to an agreement. In order to resolve the situation you may need to apply to the court for a residence order.

A residence order can be granted to more than one person and they do not need to live with each other. Separated parents, or for example, grandparents can apply for a residence order. Residence orders automatically give the person parental responsibility and parental responsibility will continue until the residence order ceases.

What is Parental Responsibility

Parental responsibility means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child. For example, if you are the father of the child and you did not marry the child's mother and are not named on the birth certificate when the child's birth was registered, you would not have parental responsibility. If you then obtain a residence order you will automatically get parental responsibility.

If you want to be recognised legally as the child's father, you may apply for a parental responsibility order. For example, if you are not the child's parent but are married to or a civil partner of the parent of the child and that parent has parental responsibility for the child and you have lived with the child in the home and treated the child as your own, and you want the rights and duties, powers and responsibility and authority which by law a parent of a child has in relation to the child, then you may want to apply for a parental responsibility order.

You may already have or acquired parental responsibility in a number of different ways for example if your child was born since 1 September 2009, you have since married or entered into a civil partnership with the child's mother, or you are the child's parent under section 43 of the Human Fertilisation and Embryology Act 2008 and you have since entered into a civil partnership with the child's mother.

Who can make an application

  • Parents of the child
  • Grandparents
  • Other family members
  • Step-parents
  • Foster Carers

Unless these categories of people already have parental responsibility for the child, they will require permission (leave) from the court before they can make an application for either child contact or residence order.

Applying for leave to make an application or, ascertaining whether or not you require the leave of the court to make an application is a very complex area of the law.
We can assist you in determining this.

Prepare Letter Before Action

Going to court should be a last resort. If there is a possibility of reaching an amicable agreement on contact or residence without the need to resort to the court it will be the better and cheaper option. With this in mind we can assist you in formulating a letter setting out your proposals for contact with your child.

Prepare Application to the Court for Leave

In the event that your written proposal is not accepted by the other party you may have no option but to make an application to the court. Depending on your relationship with the child, you may need the permission of the court to make your application. This process is called an application for leave.

Going to Court

You need to go to court and you either have permission of the court or, you have the right to make an application without the need to obtain the court's permission. This will involve completing the appropriate application form (known as the C100 form) setting out the basis for your application. Once completed it will have to be lodged with the relevant court for your area.

Responding to an Application

If you are the person who has been served with an application relating to your child, you will need to respond to the application. Your response will have to be tailored carefully. This will depend on whether or not you disagree with the basis of the application. It may also involve you putting forward a different proposal to that of the applicant.

First Court Hearing (Directions Hearing)

Should it become necessary for you to make an application to the court, the first hearing will be primarily to set down a timetable for completing your case. This is called the First Directions Hearing. The aim will be for the court to give directions as to what evidence needs to be submitted and when this should be done. So that your interest is protected and you have a reasonable opportunity to put forward your argument before the court, we can assist you in preparing proposed directions (a timetable) for how the application will be conducted during the court proceedings.

If however, you receive an application it is most important that you do not ignore it. A response will be required. If you are in agreement with the proposals as stated in the application you need to respond accordingly.
We will guide you in formulating an appropriate response.

If you are not in agreement you will need to attend court for the first hearing (directions hearing).

Evidence gathering in support of your case

Following the First Directions Hearing time will be of the essence. You will need to carefully consider the evidence you have to present to the court in support of your application. You will need to know the type of evidence that the court will allow and how this can be presented.
We can provide you with guidance on this process.

Completing witness statements and affidavit in support of your case

Part of the evidence you will require to submit to the court in support of your application will be in the form of a sworn statement (an affidavit). There may also be other people who know the child and can comment on yours or your partner's relationship with your child. Alternatively if you are a grandparent seeking contact with your grand child, you may wish to rely on statements/affidavits from others who are not involved in the case but are able to provide evidence which will support your application e.g. evidence from schools.
We can provide assistance in the preparation of these.

What is mediation and what to expect

Mediation is a confidential way for couples who are committed to finding an alternative and effective way to meet and discuss their differences in the presence of the mediator. Mediation is a constructive way to come to an agreement around arrangements for children. Family mediators do not give legal advice. Mediation sessions may be charged on a session by session basis.

Prepare and check trial bundles

Mediation is a confidential way for couples who are committed to finding an alternative and effective way to meet and discuss their differences in the presence of the mediator. Mediation is a constructive way to come to an agreement around arrangements for children. Family mediators do not give legal advice. Mediation sessions may be charged on a session by session basis.

Coming to Court

The family court is a private court and this means that the public are excluded. If you have come to court with your friends, they will have to wait outside the Courtroom. Family courts aim to have an informal atmosphere. Details of what happens in the court are not published. Each family court will be different. Some courtrooms are more formal than others. Family court magistrates or judges have specialist training and experience.

Sometimes the court is very busy and your case may not be heard for some time, therefore always come prepared to wait. It is not uncommon for a case listed in the morning to concluded late afternoon, therefore you may want to bring something to eat and drink when the court adjourns for lunch.

Courthouses are not suitable places for children. Childcare facilities are not present and court ushers are not able to look after your child whilst you are in the courtroom, therefore, you need to make childcare arrangements.

The notice sent to you by the court will tell you what time you need to be there. You should aim to arrive 30 minutes before your case is due to be heard. Always identify yourself to the usher as soon as you arrive.

It is very unlikely that your case will conclude at the first hearing unless you are able to reach an agreement. If you do not reach an agreement at the first hearing, the court will give directions as to the filing of statements, or evidence. The court will state the deadline for this to be done. These directions must be complied with.

We will assist you with ensuring that the content and deadlines set are adhered to. We will also assist in helping you to formulate directions.

What happens at the court hearing

The court hearing will take place before magistrates or a single judge. The person making the application will speak first when they will set out what orders they are asking the court to make and why. The other party will then be given the opportunity to state whether or not they oppose the application and why. Be prepared for the judge or magistrates to ask questions if they need further information or clarification of any matter.

You may have to give evidence and your evidence will be given either on oath or you can affirm. The other party can ask you questions and so can the magistrates or judge. If the other party is legally represented, their lawyer will be asking you questions on their behalf.

What the Court will consider

Once a case comes before the court, the court has a duty to consider what is best for the child or children. That will be their main concern and this may mean that the order is not exactly as applied for. Whilst this may be disappointing, the court will make the order because this is what is in the best interest of the child.

The court will not take sides but will consider all the evidence and reports available and make a decision that will be the best outcome for the child which entails safeguarding and promoting the welfare of the child. This is a balancing act which the court has to undertake and could result in the court deciding not to make any order or making an order which is different to the type applied for. For example, if contact arrangements have been agreed without coming to court and it is working well, the court may decide that an order is not needed.

The court could also make an order or change an order that exists or end an order where it is of the considered view that it is no longer necessary. The court will also be able to make directions, which means giving instructions that must be complied with or may transfer a case to another court.

CAFCASS - their role

Children do not usually attend court but the court would want to know what the child's wishes and feelings are. This is important when the child is of an age when they can express their wishes and feelings. There's no hard and fast rule about what age the child is deemed to be able to express their views, however courts in the past have held in certain circumstances that a child is able to express their wishes and feelings at the age of six.

The court may ask Children and Family Court Advisory Service (CAFCASS) to prepare a report to help it decide what's in the best interests of the child. The CAFCASS officer will be able to tell the court in their written report, what the child's views are and comment on the quality of the relationship and bonding that the child has with either parent.

CAFCASS is independent of the court, social services and similar agencies. They become involved on the specific invitation of the court. The court may order CAFCASS to carry out an assessment if it has specific concerns for the welfare of a child e.g. whether there are any issues relating to the child's safety if the child were to have contact or, live with one or either parent, or a grandparent. This is particularly so where allegations of domestic violence or abuse has been raised by any of the parties involved in the case.

Court Forms

To make your application you will need the following forms which are available from your local county court or magistrates' court:

  • Residence order - Form C100
  • Contact order - Form C100
  • Parental Responsibility Order - Form C1

Court Fees

If you are on low income or are getting certain benefits, you may not have to pay some or all of the fees.

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